Citation Nr: 0630975
Decision Date: 10/02/06 Archive Date: 10/10/06
DOCKET NO. 01-05 408A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to a rating in excess of 30 percent for a
variously diagnosed psychiatric disorder prior to August 18,
2004.
2. Entitlement to a rating in excess of 50 percent for a
variously diagnosed psychiatric disorder from August 18,
2004.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Dan Brook, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
August 1963 to August 1983. This matter is before the Board
of Veterans' Appeals (Board) on appeal from a February 2002
rating decision of the San Diego Regional Office (RO) of the
Department of Veterans Affairs (VA) that granted service
connection for depression, rated 30 percent effective May 25,
2001. In September 2003 the Board remanded the claim to the
RO for further development. In a December 2005 decision the
RO granted an increased (50 percent) rating effective August
18, 2004, and also granted a total disability rating based on
unemployability (TDIU) effective December 1, 2004. The
issues have been characterized to reflect that "staged"
ratings are assigned.
FINDINGS OF FACT
1. Prior to August 18, 2004, the veteran's depression was
manifested by significant social impairment including
difficulty establishing social relationships and disturbances
of motivation and mood; occupational and social impairment
with deficiencies in most areas was not shown.
2. From August 18, 2004, the veteran's depression has been
manifested by occupational and social impairment with
deficiencies in most areas, including difficulty establishing
social relationships and disturbances of motivation and mood;
total occupational and social impairment is not shown.
CONCLUSION OF LAW
The veteran's variously diagnosed service connected
psychiatric disability warrants staged ratings of 50 percent
prior to August 18, 2004 and 70 percent from that date. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130,
Diagnostic Codes (Codes) 9434, 9440 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The veteran has been advised of VA's duties to notify and
assist in the development of his claims. A January 2004
letter from the RO explained what the evidence needed to show
to substantiate the claim. It also explained that VA was
responsible for obtaining relevant records from any federal
agency, and that VA would make reasonable efforts to obtain
records not held by a federal agency, but that it was the
veteran's responsibility to make sure that VA received all
requested records not in the possession of a federal
department or agency. While this letter did not advise the
veteran verbatim to submit everything he had pertinent to his
claim, it explained the type of evidence necessary to
substantiate the claim and asked him to submit any such
evidence. This was equivalent to advising him to submit
everything in his possession pertinent to the claim. The
rating decisions, a January 2003 statement of the case (SOC)
and a December 2005 supplemental SOC provided the text of
applicable regulations and explained what the evidence showed
and why the claims were denied. He was given ample time to
respond; and the case was readjudicated, after VCAA notice
was given.
While complete VCAA notice was not given prior to the rating
on appeal, the appellant had ample opportunity to respond to
the notice letters and the SOC and SSOCs and to supplement
the record after notice was given. He is not prejudiced by
any technical notice deficiency that may have occurred along
the way, and no further notice is required. See Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004).
Regarding VA's duty to assist, the RO has obtained available
VA and private medical evidence. The veteran was provided
psychiatric evaluations, in October 2001 and August 2004. He
has not identified any additional evidence pertinent to this
claim. VA's assistance obligations are met. The veteran is
not prejudiced by the Board's proceeding with appellate
review.
II. Factual Background
A May 2001 letter from J.S., a Licensed Marriage and Family
Therapist indicates that she evaluated the veteran and that
major depression, single episode, severe, without psychotic
features and post traumatic stress disorder (PTSD), were
diagnosed. The Global Assessment of Functioning (GAF) score
was 40. She commented that the veteran's depression stemmed
from his physical, social and occupational issues, which were
a result of the limitations imposed by his colitis.
On VA examination in October 2001, the diagnosis was major
depression, mild to moderate degree since 1995. The veteran
indicated that his depression was related to his ulcerative
colitis, which he had since 1973. He had had a colectomy and
had a great deal of problems with bowel management. He had
to wear diapers, which limited his career and social life.
He took Xanax, .5mg, possibly one a day, to manage the
anxiety. He was not taking any antidepressants as his
doctors had told him that he did not want to be on too many
medications because of the ulcerative colitis. The veteran
described his depression as just a darkness and a sadness,
with anger at times. It tended to keep him at home, in mind
of where the bathrooms were at all times. The constant bowel
problems were a terrible constant stress. The veteran
complained of depressed mood, difficulty sleeping and
occasional bad dreams about Vietnam, possibly once every
three months. He got sad that he had ulcerative colitis,
along with being annoyed, angry and down on himself. There
were no suicidal or homicidal ideation and no hallucinations.
The examiner deemed the veteran's condition to be, "pretty
straightforward depression." The veteran reported that he
had panic attacks possibly once or twice a month and was
depressed probably every day. He had never been hospitalized
for depression or any other psychiatric problem. Psychiatric
symptoms were daily primarily in connection with frequent
bowel symptoms. He suffered from depressed mood, feelings of
hopelessness, helplessness and persecution. The examiner
indicated that the veteran did have nightmares, flashbacks,
intrusive thoughts, hypervigilance, etc., symptoms one might
get from PTSD. On mental status examination the veteran was
pleasant and bright. His responses were rapid; he did not
appear to be clinically anxious and generally, for the most
part, did not appear depressed. He knew the correct date,
the name of the president and the name of the governor of
California. His IQ was above average and he abstracted well,
with tight associations. The veteran's memory to both recent
and distant events and judgment, insight and cognitive
testing was intact. While he did not appear to be depressed
on examination, the examiner believed he did have a pretty
constant depression and that he was a credible witness. The
GAF score was 50. The examiner disagreed with a previous
diagnosis of PTSD. He felt that the veteran had major
depressive disorder with an occasional panic disorder, and
that the depression and panic disorder were related to his
ulcerative colitis.
On VA examination in August 2004 again by Dr. M, the
diagnosis was adjustment disorder with depression,
irritability, anger, resentment about having ulcerative
colitis and all that it entails. The veteran reported being
extremely depressed over the fact that he was stricken by
incapacitating ulcerative colitis. He had not only had
sadness and depression over the colitis, he also had a great
deal of irritability and anger, some of it directed toward
his Creator and some directed in a racial sense toward his
fellow man. He had had to continue working despite a
condition that would have caused many to retire if they had
sufficient funds. He had six children to support and his
wife had just been diagnosed with lupus. He had no social
life and felt hopeless over his illness. He could not dance,
swim or run, all of which had been very important to him.
His constant preoccupation with his terrible bowel symptoms
kept him constantly depressed, angry, irritable and
disgusted. The examiner noted that the veteran seemed to be
worse with more verbalization of resentment, anger and
irritability than he had been at time of an earlier
examination in 2001. The veteran had some suicidal ideation
with no plan, no homicidal ideation and no psychotic
symptoms. He was very hypervigilant as a result of being
brutalized by racial issues, and the ulcerative colitis had
made this ten times worse. Mental status examination showed
an inwardly sad, depressed and angry individual with an
average I.Q. He reported spontaneous crying spells out of
the blue, possibly once or twice per month. There was no
suggestion of schizophrenia, bipolar disorder or dementia.
Memory was intact for recent and distant events. Judgment
and insight were good, and he was not hostile. There was no
impairment of cognitive capacities. There were no delusions
or inappropriate behavior, no history of hospitalization and
no significant memory loss. The GAF score was 45. The
examiner noted that the GAF had been reduced by 5 points
since 2001 due to a worsening of the condition. The examiner
indicated that the GAF score was determined solely by the
veteran's adjustment disorder. Looking at the total picture
and factoring in the physical problems, the examiner found
that the GAF was much closer to 35 than 45, if one factored
in the pain and suffering and reduction of quality of life
from the ulcerative colitis. There were therefore two GAFs;
one GAF purely for psychiatric purposes and one more
encompassing GAF of 35 that included his ulcerative colitis
symptoms. The examiner suggested that it would be most
appropriate to rate the veteran on the GAF of the more global
type since the veteran's ulcerative colitis was his major
stressor. The veteran was found to be competent and not a
danger to himself or others. He seemed to be doing
everything possible to improve his health so he could
continue to take care of his family.
III. Law and Regulations
Disability ratings are based on average impairment in earning
capacity resulting from a particular disability, and are
determined by comparing symptoms shown with criteria in VA's
Schedule for Rating Disabilities (Rating Schedule).
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic
codes identify the various disabilities.
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations, which are
potentially applicable, based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991).
As the claim for increase is an appeal from the initial
rating assigned, the possibility of staged ratings should be
considered. Fenderson v. West, 12 Vet. App. 119 (1999). The
Board finds that additional rating stages beyond those
already assigned are not warranted because the current stages
adequately reflect when significant changes in symptoms were
shown.
Where there is a question as to which of two evaluations
apply, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will be
assigned.
38 C.F.R. § 4.7.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. It
is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
When all of the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a fair preponderance of the evidence is
against the claim, in which case the claim is denied.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
The veteran's psychiatric disorder encompasses major
depression and adjustment disorder. Both are rated under the
General Rating Formula for Mental Disorders (See 38 C.F.R.
§ 4.130, Codes 9434 and 9440). This formula provides for a
30 percent rating when there is occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment and mild memory loss (such as forgetting names,
directions, recent events).
A 50 percent rating is assigned when there is occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships.
A 70 percent rating is assigned when there is occupational
and social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships.
A 100 percent rating is assigned when there is total
occupational and social impairment, due to such symptoms as
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; and memory loss for names of
close relatives, own occupation, or own name. 38 C.F.R. §
4.130.
Rating in excess of 30 percent prior to August 18, 2004
The October 2001 VA examination showed that the veteran had
clearly been suffering from major depression as a result of
his socially debilitating ulcerative colitis. This
depression was manifested by significant disturbances of
motivation and mood and great difficulty in establishing and
maintaining relationships. His situation tended to keep him
at home in mind of where the bathrooms were at all times and
his constant bowel problems were a terrible constant stress,
leaving him with daily symptoms of depressed mood, feelings
of hopelessness, helplessness and persecution. His GAF score
of 50 was indicative of a serious impairment of social
functioning. See Diagnostic and Statistical Manual of Mental
Disorders (4th ed.1994) (i.e. DSM IV). These symptoms
warrant a 50 percent rating under Code 9434 for occupational
and social impairment with significant disturbances in mood
and difficulty in establishing and maintaining relationships.
A higher (70 percent) rating is not warranted as occupational
and social impairment with deficiencies in most areas was not
shown. At the time of the October 2001 examination the
veteran was still employed as a custodian with the Post
Office. While an earlier, May 2001, letter by J.S. did
appear to show a lower level of functioning, more suggestive
of a 70 percent rating, J.S.'s evaluation of the veteran took
place prior to the rating period under consideration, and the
diagnosis of PTSD by J.S. was discredited on subsequent, more
detailed, October 2001 VA examination.
Rating in excess of 50 percent from August 18, 2004
The August 2004 VA examination showed a significant worsening
of symptoms as compared with October 2001. As mentioned
above, the veteran showed more verbalization of resentment,
anger and irritability, had no social life, felt hopeless
over his illness and had some suicidal ideation. The
constant preoccupation with the terrible bowel symptoms kept
him constantly depressed, angry, irritable and disgusted. He
had to continue working despite having a condition that would
have forced most people to retire. He was also hypervigilant
as a result of being brutalized by racial issues and the
ulcerative colitis had made this ten times worse. The
examiner gave the veteran an all encompassing GAF score of 35
and suggested that it was most appropriate to rate the
veteran on the basis of this GAF since the veteran's
ulcerative colitis was his major stressor.
According to the DSM IV, a GAF of 35 is indicative of major
impairment in several areas such as work or school, family
relations judgment, thinking or mood. Such level of
functioning is consistent with the criteria for a 70 percent
rating. Since the August 18, 2004 VA examination reasonably
shows occupational and social impairment with deficiencies in
most areas including work, mood and over all social
functioning, a 70 percent rating for the veteran's adjustment
disorder with depression is warranted from August 18, 2004.
A higher (100 percent rating) is not warranted as total
occupational and social impairment is not shown. Notably the
veteran does not suffer from symptoms such as gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; and memory loss for names of close relatives,
own occupation, or own name).
ORDER
Increased staged ratings of 50 percent prior to August 18,
2004 and 70 percent form that date are granted for the
veteran's service connected variously diagnosed psychiatric
disability, subject to the regulations governing payment of
monetary awards.
____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs